Excerpt:.....nothing has been urged showing the invalidity of this notice. it is perfectly legitimate for the assessing authority to call upon the assessee to produce the accounts and documents for the purposes of assessment. in so far as the memorandum, informing the petitioners that their sales tax case for the year 1955-56 had been fixed for 26th october, 1959 and that the firm should appear on the said date along with the account books for the period in question is concerned, again the counsel has failed to show its invalidity so as to justify a writ of prohibition restraining the assessing authority to continue the proceedings. 4. the contention of the counsel is somewhat like this. he submits that no best judgment proceeding as contemplated by section 11(4) of the east punjab general sales..........or by issuing cheques for the amounts of the sales tax for the relevant quarters in favour of the assessing authority, which cheques, it is claimed, were duly honoured. on 17th of september, 1956, the assessing authority is alleged to have issued a notice under section 11 of the above act requiring the petitioner-firm to produce evidence in support of its returns for the years ending 31st of march, 1955 and 31st of march, 1956. in the present writ petition, however, we are only concerned with the notice in so far as it relates to the year ending 31st of march, 1956. it is then alleged that in continuation of the notice of 17th of september, 1956, the assessing authority sent a memorandum to the petitioner-firm, dated 8th of october, 1959, requiring it to appear and produce the account.....

Judgment:ORDER

Dua, J.

1. This judgment will also dispose of Civil Writ No. 1141 of 1959, which, according to the counsel, involves the same question.

2. In Civil Writ No. 1285 of 1959 the petitioners claim to be a partnership concern duly registered under the Indian Partnership Act and carrying on the business of building and repairing 'bodies' on the chassis of the trucks and buses at Jullundur. For the year ending 31st of March, 1956, the petitioner is said to have filed returns for the quarters ending 30th of June, 1955, 30th of September, 1955, 31st of December, 1955 and 31st of March, 1956 and the sales tax payable under Section 10(4) of the East Punjab General Sales Tax Act (East Punjab Act No. XLVI of 1948) is alleged to have been paid in the State Bank of India or by issuing cheques for the amounts of the sales tax for the relevant quarters in favour of the assessing authority, which cheques, it is claimed, were duly honoured. On 17th of September, 1956, the assessing authority is alleged to have issued a notice under Section 11 of the above Act requiring the petitioner-firm to produce evidence in support of its returns for the years ending 31st of March, 1955 and 31st of March, 1956. In the present writ petition, however, we are only concerned with the notice in so far as it relates to the year ending 31st of March, 1956. It is then alleged that in continuation of the notice of 17th of September, 1956, the assessing authority sent a memorandum to the petitioner-firm, dated 8th of October, 1959, requiring it to appear and produce the account books for the year 1955-56, i.e., for the period beginning with 1st of April, 1955 and ending with 31st of March, 1956. On these facts the petitioner's counsel prays for a writ in the nature of certiorari quashing the notice dated 8th of October, 1959, in so far as it relates to the period ending 31st of March, 1956 and for a writ in the nature of prohibition restraining the respondent from assessing the petitioner for the said period.

3. In the reply filed on behalf of the respondent it is asserted that in so far as the year 1955-56 is concerned, steps in the first instance were taken on 7th of September, 1956, when a notice in form S.T. XIV was issued to the petitioner for appearing before the assessing authority on 17th of September, 1956, but since the assessment could not be finalised and had to be kept pending either on account of the petitioner seeking adjournment of its own accord or on account of adjournments due to non-service of the notice, the proceedings are still pending It is also averred that the petitioner-firm has been given several opportunities for producing its account books and that if the same are not produced in compliance with the notices served upon it, the assessing authority would proceed according to law. The assessmant proceedings for the year in question having been started well within three years of the expiry of the year, there is no ground for interference by this Court with those proceedings. It is also asserted that the petitioner having not complied with the notice issued under Section 11(2) of the Act and having got the proceedings adjourned on one pretext or the other without producing the account books or other evidence in support of the returns submitted by it, the assessing authority would have to complete the assessment as provided in Section 11(4), i.e., on best judgment basis, on failure of the dealer to comply with the terms of the notice issued under Section 11(2). The counsel for the petitioner has, in his arguments, asked for quashing the notice dated 17th of September, 1956. This prayer is wholly misconceived, because nothing has been urged showing the invalidity of this notice. It is perfectly legitimate for the assessing authority to call upon the assessee to produce the accounts and documents for the purposes of assessment. In this notice the petitioner-firm was also permitted to urge any objection which it desired to prefer against the notice. In so far as the memorandum, informing the petitioners that their sales tax case for the year 1955-56 had been fixed for 26th October, 1959 and that the firm should appear on the said date along with the account books for the period in question is concerned, again the counsel has failed to show its invalidity so as to justify a writ of prohibition restraining the assessing authority to continue the proceedings.

4. The contention of the counsel is somewhat like this. He submits that no best judgment proceeding as contemplated by Section 11(4) of the East Punjab General Sales Tax Act can take place unless there is a failure to comply with the terms of a notice issued under Sub-section (2) and that the assessing authority cannot start proceedings to assess, to the best of its judgment, the amount of tax due from the dealer after the expiry of three years from 31st of March, 1956. Up to this stage the contention of the counsel seems to be unexceptionable. He, however, proceeds further and submits that in the present case the assessing authority has not shown that the proceedings under Sub-section (4) were initiated within three years from 31st of March, 1956. I am afraid on the material on the record and even on the allegations contained in the petition, it is not possible for us to hold affirmatively that the classing authority did not initiate proceedings under Section 11(4) within three years from 31st of March, 1956. It is, however, conceded by Mr. Bhagirath Das and in our opinion, rightly, that if the proceedings to assess to the best of the assessing authority's judgment began within three years, as contemplated by Sub-section (4) of Section 11, then it is not necessary that the final assessment should also take place within the said period of three years. In the present case all that the petitioner has shown is that on 8th of October, 1959, a notice was sent to the assessee to appear before the assessing authority along with its account books for the relevant year and this notice, on the allegations contained in the petition, cannot be held to be invalid and it is not possible for us, on the existing record, to restrain the respondent from continuing the proceedings.

5. The counsel has laid great emphasis on the argument that there being no express finding that the petitioner has failed to comply with the notice issued under Section 11(2) to attend in person or to produce or cause to be produced evidence in support of the returns and three years having expired from 31st of March, 1956, the assessing authority-respondent has no jurisdiction to make any order of assessment under Section 11(4). On the existing material, however, I do not find it possible to uphold the petitioner's contention. The notice of the 8th of October, 1959, does not by any means show that the respondent has started proceedings after the expiry of three years from 31st of March, 1956, in violation of the provisions of Section 11(4). In this view of the matter it is not possible for this Court to issue a writ of prohibition under Article 226 of the Constitution and to restrain the respondent from taking further proceedings in the matter. It is to be borne in mind that if the assessing authority ultimately passes any order which is contrary to law and the petitioner has a grievance against it, it is open to him to take the matter on appeal and to seek redress from the higher authorities in accordance with the provisions of the Act. It is true that in a clear-cut case, when the interests of justice so demand, this Court would perhaps not hesitate from granting relief to a citizen where his fundamental right is violated or is even threatened to be violated, or where the vires or the constitutionality of the law under which the imposition is claimed is successfully challenged, but on the existing material and at this stage of the proceedings.in the instant case it is not possible for us to come to this conclusion and to interfere by means of a writ in the nature of prohibition or of a similar order or direction.

6. While delivering the judgment of the Supreme Court in K.S. Rashid and Son v. The Income-tax Investigation Commission etc. [1954] S.C.R. 738, Mukerjea, J., (as he then was) made the following weighty observations at page 747 :-

For purposes of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. So far as the present case is concerned, it has been brought to our notice that the appellants before us have already availed themselves of the remedy provided for in Section 8(5) of the Investigation Commission Act and that a reference has been made to the High Court of Allahabad in terms of that provision which is awaiting decision. In these circumstances, we think that it would not be proper to allow the appellants to invoke the discretionary jurisdiction under Article 226 of the Constitution at the present stage and on this ground alone, we would refuse to interfere with the orders made by the High Court. Dr. Tek Chand argues that the Income-tax authorities have not referred all the matters to the High Court which the appellants wanted them to do. But for this there is a remedy provided in the Act itself and in case a proceeding occasions a gross miscarriage of justice, there is always the jurisdiction in this Court to interfere by way of special leave.

7. There are also two Bench decisions of this Court in Indian Iron and Steel Company Limited v. The Officer on Special Duty (Central Circle), Punjab [1959] 10 S.T.C. 150 and Firm Mangat Ram Hazari Mal Kuthiala v. The State of Punjab and Anr. [1959] 10 S.T.C. 194, in which it was held that the aggrieved parties should avail themselves of the ordinary remedy provided by the Sales Tax Act itself before invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution. In another case Mehar Singh, J. and myself also expressed a similar opinion : See The Punjab Woollen and Textile Mills, Amritsar v. The Assessing Authority, Amritsar (Civil Writ No. 1050 of 1958) [1960] 11 S.T.C. 486.

8. It seems to me to be fairly well-settled that this Court is not obliged under Article 226 of the Constitution necessarily to proceed to investigate into the merits of the controversy merely because it is alleged that the ultimate assessment is likely to be contrary to law and thus to by-pass and arrest the normal proceedings before the assessing authority. The function of prohibition, generally speaking, is not the correction of all errors alleged to have been committed by the departmental tribunals, unless they have, by erroneous conclusion or assumption as to a matter of law, given to themselves a jurisdiction which they do not rightly possess. In the instant case the only allegation being that the taxing authorities are legally in error in continuing the proceedings and even this allegation not being apparent or clearly established on the present record, this petition at this stage appears to me to be misconceived. The vires or the validity of the law under which the taxing authorities are proceeding has not been challenged by the petitioner. On the facts, therefore, the petitioner has not made out a case for the exercise of our discretion under Article 226 to arrest the proceedings pending before the assessing authority by quashing the notice dated 8th of October, 1959.

9. For the reasons given above this petition fails and is hereby dismissed with costs. The respondent would also be entitled to costs in Civil Writ No. 1141 of 1959 which also fails and is hereby dismissed.